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Judge removed from discrimination case

A federal appeals court says it's troubled by Manuel Real's `apparent unwillingness' to abide by its orders to correct his errors in the trial.

January 05, 2007|Henry Weinstein | Times Staff Writer

A federal appeals court in San Francisco has removed veteran Los Angeles federal Judge Manuel Real from the case of a Pearl Harbor shipyard supervisor of partial Hawaiian descent who contends that he was illegally passed over for promotion because the U.S. Navy favored Caucasians.

The three-judge panel of the U.S. 9th Circuit Court of Appeals said it was troubled by Real's "apparent unwillingness" to follow an earlier ruling ordering him to admit relevant statistical evidence and testimony into the retrial of Ronald L. Obrey Jr.'s bias claims.

The decision came just six weeks after a disciplinary panel of the 9th Circuit voted 9 to 1 to publicly reprimand Real for improperly seizing control of a bankruptcy case involving a defendant whose probation he was supervising. Real has appealed that decision to the Judicial Conference of the U.S. in Washington.

The bankruptcy case also prompted a congressional subcommittee to call a hearing on a resolution to consider Real's possible impeachment. No action has been taken on the proposal. The 9th Circuit's action to take the Obrey case away from Real is unusual but not unprecedented. In 1986, the court reassigned a long-running contentious case involving Sears that Real had been hearing, and in 2005 it stripped the judge of a case involving chemical giant E.I. DuPont de Nemours & Co. In each instance, the 9th Circuit said it took its actions to "preserve the appearance of justice."

The 9th Circuit's Dec. 26 ruling means that Obrey, a 53-year-old shipyard worker, will get a third chance to prove his discrimination claim. Real was sitting in Hawaii as a visiting trial judge.

The appeals court first intervened in the Obrey case in 2005, ordering a retrial on the basis of several errors by Real.

In its more recent, unpublished decision, issued over the Christmas holidays, judges Stephen Trott, Kim M. Wardlaw and William A. Fletcher said that Real "committed a number of errors, mostly due to his failure to apply our prior decision in this case."

The court cited five abuses of discretion by Real, including preventing Obrey's expert witness from testifying about selection processes in which only one candidate applied for and got a job, and processes in which a job search was initiated but no candidate was chosen. The appeals court said Real also abused his discretion by refusing to permit live rather than written testimony from three of Obrey's witnesses, who said they had been passed over for shipyard jobs because of their race.

Taken together, Real's actions "were prejudicial to Obrey," the 9th Circuit panel said, adding that "the trial would have been quite different had these significant errors not been made."

Although the court said that Obrey had not met the demanding test of proving that Real was biased against him, "in order to preserve the appearance of justice," the judges would exercise their supervisory power to reassign the case to a different judge for a third trial. The 9th Circuit said that although the new judge assigned to the case "must follow our holdings ... it should otherwise begin with a clean slate and is not bound" by Real's prior evidentiary rulings.

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